A lawyer has a duty to preserve relevant, or potentially relevant evidence posted on social media websites, according to an ethical guidance opinion issued by the Philadelphia Bar Association Professional Guidance Committee on July 7, 2014. The Opinion emphasized that a lawyer’s duty to preserve evidence does not change simply because the information is on a social networking website such as Facebook. Regardless of where the information comes from, lawyers must comply with their obligations under the Pennsylvania Rules of Professional Conduct.
The opinion, No. 2014-5, focuses on two issues: (1) what a lawyer may instruct a client to change or remove from the client’s social networking site, and (2) what obligations a lawyer has when responding to a discovery request seeking social media content.
The Committee, applying Pa. R.P.C. 3.4 (“Fairness to Opposing Party and Counsel”), concluded that a lawyer may instruct a client to change the privacy settings on the client’s social media site. However, a lawyer may not instruct a client to destroy any information already posted on the page. This does not mean, however, that a lawyer cannot instruct a client to remove content that may be damaging to the client’s case. Instead, the lawyer may instruct a client to remove the information but must take “appropriate action” to preserve the information in case it becomes relevant and discoverable in the case.
The Committee also noted that changing the privacy settings on a social media site to restrict who may access its content is permitted under the Rules because changing the privacy settings does not change the content on the site. There are other ways to access the content, and the Opinion cites multiple cases where courts have granted motions for discovery of social media information. While it may be more cumbersome for opposing counsel to retrieve relevant information, there is nothing unethical about instructing clients to change the privacy settings on their social media sites.
Addressing the second issue, the Committee relies on Pa. R.P.C. 4.1 (“Truthfulness in Statements to Others”) to conclude that a lawyer, in response to a Request for Production of Documents, must make reasonable efforts to obtain and produce relevant social media content if the lawyer knows that a client possesses that information. However, a lawyer is not required to take any affirmative steps to obtain information that is under the control of a third party.
This opinion now gives lawyers some guidance on their ethical duties relating to a client’s use of social media. Social media evidence still must be preserved and produced like other types of evidence. Our office regularly addresses a variety of legal ethics issues dealing with social media and other areas of the law.